Public law campaigners – with the help of the Law Society – have helped a vulnerable child overcome a hurdle in challenging the Legal Aid Agency. If successful, the case could potentially widen the scope of legal aid for looked-after children with special education needs.
The Gazette has learned that Public Law Project was granted permission by the High Court to challenge the agency's refusal to grant its client, who is of infant school age and partly under the care of the local authority, exceptional case funding (ECF) for an appeal to a special education needs and disability (SEND) tribunal.
PLP said the agency refused legal aid for the appeal on means grounds, stating that the finances of the foster parents, who are also the child’s prospective adopters, should be assessed. In the SEND tribunal, appeals are brought in the name of a parent or carer rather than the child. The child argues that, for legal aid purposes, the prospective adopter’s role should be categorised as akin to that of a litigation friend - which would mean their means are not relevant.
Despite securing permission to challenge the agency's decision, getting to the High Court was not easy.
PLP said: ‘The LAA initially refused the client legal aid funding to bring the judicial review against them on the grounds that the legal aid merits threshold was not met - a decision the LAA upheld on appeal. The client reapplied and was finally granted legal aid by the LAA after the High Court’s decision to grant permission in their judicial review.
‘Without the support of the Law Society, which provided an indemnity against adverse costs, the child’s case would not have reached this stage.’
PLP solicitor Emma Vincent Miller, and Garden Court Chambers’ Amanda Weston QC, Oliver Persey and Isaac Ricca-Richardson are representing the child in the judicial review proceedings. Solicitor Esther Salter of Simpson Millar is representing the child in the SEND tribunal case.
Persey said: 'SEN ECF is a safety net for families with disabled children. ECF can cover legal representation and expert attendance at SEND Tribunal hearings, helping to address the inequality of arms between families and local authorities. It is therefore essential that the ECF scheme is fit for purpose.'
Vincent Miller said: ‘The legal aid scheme exists to ensure access to justice for those that cannot afford to pay for legal representation. This case is just one example of where barriers to securing legal aid funding make it more difficult for vulnerable people to challenge decisions that have profound impact on their lives. If successful, this case will make justice more accessible for a particularly vulnerable group.’
The LAA said it was unable to comment while proceedings are live.